Questions regarding one’s character as a spouse and parent often arise in a divorce and/or child custody case, and family members are often some of the best, if not the best, character witnesses on subjects that frequently arise in divorce and child custody cases. What kinds of questions? For example, questions about a party’s parental fitness and character may because family members are often the most percipient witnesses, meaning they are those who have observed a party as a parent most often, most accurately, and most reliably.
As you might have guessed, one of the reasons that family members are not seen as the best witnesses generally (whether a fact witness or character witness) is because there will always be a question of whether your mom or dear uncle Milt is a reliable source of accurate information about you, as opposed to being someone who will propagandize for you irrespective of the truth. It’s not unreasonable to presume that a family member might choose loyalty to you over being completely honest about you.
Sometimes, a family member may be your best, even your only, witness on a particular issue. So, if you aren’t afraid that your family member has dirt on you, and if you trust that your family member will both be honest and come across as honest, don’t write off a family member as a witness merely for being a family member.
Some people confuse a character witness with “a witness who will say things that are helpful to my case, so that the court will side with me.” It’s understandable if someone who is not an attorney believes that a divorce or child custody case is a popularity contest, but it’s not. If your witness doesn’t have believable testimony to give on a relevant issue, you shouldn’t call that witness to testify. For example, if you were to bring in any witness, family member or otherwise, to say that generally your spouse is mean and therefore should be treated harshly when it comes to dividing marital assets, such witness testimony is not only totally irrelevant evidence, but wasteful of court time and thus very irritating to the judge. Additionally, bringing in a dozen character witnesses to say the same thing about your character or the character of your spouse is unnecessarily cumulative and the court would almost certainly not permit a dozen witnesses to say duplicative things when one or two, maybe three witnesses would suffice.
Sometimes, your attorney may advise you not to call a family member as a witness to protect you from having that family member intentionally or inadvertently say things about you that paint you in a bad light. Sometimes, your attorney may advise you not to call a family member as a witness because you are unsure of what the witness would say or you know that the family member is a chatterbox who doesn’t know when to shut up.
Bottom line: 1) family members are not barred from being character witnesses; 2) family members are often the best or among the best of your character witnesses; 3) don’t be afraid to utilize family members as character witnesses, as long as they will come across as credible witnesses who won’t intentionally or inadvertently say damaging things about you; and 4) avoid poisoning the opinion of the court against you by ensuring that you do not call “character witnesses” to testify on subjects and issues that have nothing to do with your or your spouse’s character.
Utah Family Law, LC | divorceutah.com | 801-466-9277